12/31/2015

With accusations of hypocrisy now being rightfully lobbed at Hillary Clinton after she accused a GOP candidate of having a “penchant for sexism,” yet in nearly the same breath announced that one of the most notorious sexists of our time would be stumping for her on the campaign trail, feminists are groaning in dismay at having to yet once again square their support for iconic feminist Hillary Clinton with Bill Clinton’s much publicized sexual misconduct toward women.

Given that Hillary Clinton is campaigning on a platform of owning a uterus (also known as playing gender politics), this self-appointed, self-anointed alleged champion of women and children’s rights finds herself in a bit of a pickle, too, given that she has historically been defender and enabler of her woman-abusing sexist husband, as well as intimidating and smearing any number of women who accused him of sexual assault, thus leading the charge of Democrats in their war on women.

What a sordid mess: Hillary Clinton, feminist icon, enabler of notorious sexist Bill Clinton and persecutor of his female victims, wants to become our next president, and Bill Clinton, notorious sexist ex-president and abuser of women, is campaigning to help said feminist icon and fellow abuser of women become our next president. And all the while, the American feminist is circling the wagons around these two Democratic idols because they’re all about advocating for women. Sure they are. Could it possibly get any more twisted than this? Why yes, it certainly can.

Yesterday, after the news came out that Bill Cosby would be arraigned on charges of sexual assault, Amanda Marcotte tweeted something rather remarkable:

Interesting, because as far as I know, this is the same Amanda Marcotte who just last year jusitifed then lawyer Hillary Clinton’s willingness to play the “crazy bitch” card on a 12 year old female rape victim in order to get her 41 year old client, who was facing 30 years to life, off the hook. Mind you, Marcotte neglected to mention that Clinton was not a public defender assigned to the case, but rather she chose to defend the rapist as a favor. Marcotte even went so far as to complain about the Washington Posts’s Melinda Hennenberger’s temerity to question Clinton’s ethical decision to smear the victim. Marcotte dismissed it as little more than Hennenberger “making hay over irrelevant details”. Here is a portion of Hennenberger’s “irrelevant” hay making:

In an interview in the mid-1980s for an Esquire magazine piece that never ran, Clinton’s glee is audible about the prosecution’s big mistake in the case, when it accidentally discarded key evidence. Some are writing off the remarks, as one fellow journalist put it on social media, as “typical gonzo defense lawyer talk.”

It is not, however, typical talk for a lifelong defender of women and children.

Nor was Clinton’s defense plan, mapped out in a court affidavit. In it, she questioned the credibility of the victim and suggested that the sixth-grader, who an ER doctor said showed injuries consistent with rape, had “a tendency to seek out older men.”

“I have been informed that the complainant is emotionally unstable,’’ Clinton wrote in the affidavit, “with a tendency to seek out older men and to engage in fantasizing.” The document, filed with the Washington County, Arkansas court on July 28, 1975, argued for a psychiatric evaluation for the victim.

“I have also been informed that she has in the past made false accusations about persons, claiming they had attacked her body,’’ Clinton wrote. “Also that she exhibits an unusual stubbornness and temper when she does not get her way.”

The “little bit nutty, little bit slutty’’ defense has a long, ugly history. It’s jarring to see it trotted out against a kid by a future feminist icon. The argument also bears an uncomfortable similitary [sic] to Clinton White House descriptions of Monica Lewinsky, who without that semen stain on her little blue dress would have been dismissed as a stalker who had fantasized that she had a relationship with President Bill Clinton.

…

In 2008, her spokesman told Newsday that Clinton “had an ethical and legal obligation to defend him to the fullest extent of the law. To act otherwise would have constituted a breach of her professional responsibilities.”

Defending even a child rapist as vigorously as possible might be a plus if she were running to lead the American Bar Association. But wouldn’t her apparent willingness to attack a sixth-grader compromise a presidential run?

Marcotte responded to Henneberger’s concern about Hillary Clinton’s willingness to use the “little bit nutty, little bit slutty” defense on the child-victim with this shameful justification:

I understand why this gives Henneberger pause, but to quote myself from 2012:

Defense attorneys use this strategy because it works, as can be routinely demonstrated. As long as juries keep acquitting based on this myth that women routinely make up rape accusations for the hell of it, defense attorneys will continue to use it. The problem here is a larger culture that promotes rape myths, not defense attorneys who exploit these myths in last-ditch attempts to get acquittals for rapists who have overwhelming evidence against them.

So there you have it. It’s the fault of society, juries, the justice system, and the fact that a defendant is guaranteed a right to an adequate defense. In Marcotte’s view, Hillary Clinton is absolved of playing the the notorious “crazy bitch” card against a child rape victim, as well as any number of sexual assault victims involving her husband. In Marcotte’s dishonest eyes, none of these irrelevant details call into serious question Clinton’s campaign platform of being an advocate for women and children. Seriously, Amanda?? Who is the real crazy bitch here?

Here’s the thing: the issue isn’t about Hillary Clinton choosing to defend an accused child rapist to advance her career (that’s a separate issue). The issue is that in her defense of said accused child rapist, if necessary, she was more than willing to impugn the credibility of a child rape victim to get the charges against her client dropped. In other words, neither Hillary Clinton nor Amanda Marcotte had any qualms about using the very same “crazy bitches” strategy that Marcotte now condemns and wants to see come to an end.

Look, we already know that Hillary Clinton is no more about protecting the rights of women and children than is Amanda Marcotte. They both have excused, rationalized, and dishonestly represented themselves before the American people in an effort to push themselves forward as leading advocates for women. But it is Hillary Clinton who wants to become our next president. Therefore, it is absolutely vital to point out the abhorrent untruth she continues to push, and that is that she has always been an advocate for women and children. Clearly, we know otherwise. Should this impact her run for the presidency? Absolutely. Whether it will or not, however, is up to voters. But certainly it can be agreed upon by rational people that this is simply not what an alleged champion of women and protector of children looks like.

Yes, the bowl season has been going on for a few weeks now, but New Year’s Eve has traditionally marked the key date in the college football postseason, from the days of my youth in which the Sun Bowl and Peach Bowl were traditionally played to the present day in which for the first time the two national championship semifinal games will take place at the Orange Bowl and the Cotton Bowl.

So, since being a curmudgeon is half the fun of being a conservative, let me take this opportunity to point out an interesting article from The Chronicle of Higher Education which calls into question the oft-heard claim from the NCAA Division I member programs that the massive revenue from college football and basketball pays the way for the entire athletic program at their institutions. Last month, The Chronicle reported that, based upon data provided by private colleges and universities via freedom of information act requests, only 6 of 201 Division I sports programs at public universities for which they received data (the state of Pennsylvania does not require its public universities to divulge their athletic spending and several other colleges failed to report their results by the deadline) managed to break even in their athletic departments. In fact, according the authors, the schools surveyed subsidized their athletic programs to the tune of $10.3 billion dollars over the past five years, with much of that money coming from mandatory student fees.

The Chronicle link includes an interactive chart which is sortable by school, conference, revenue, and subsidies. In itself, it provides quite an interesting look at how big time athletics works at these member schools. For those interested, the six schools which purport to have operated Division I athletics programs without subsidies from 2010 through 2014 are the following: the University of Oklahoma, the University of Texas, Louisiana State University, Ohio State University, the University of Nebraska, and Purdue University. It appears that in general, the schools in what are commonly termed the Big Five Power Conferences are on more solid financial footing than the smaller conferences, as the high costs of their huge athletic programs are helpfully offset by lucrative television contracts which each year pump as much as $30 million per school to conference members, with even higher payouts set to follow in coming years. Teams from less prestigious conferences, especially those who play both Division I football and basketball, appear to rely the most upon student subsidies with Rutgers University, James Madison University, the University of Connecticut, and the University of Cincinnati listed as requiring at least $27 million in subsidies in 2014.

Professors Jody W. Lipford and Jerry K. Slice, economists at Presbyterian College, recently published an academic paper which provides further insight into the extravagant ways of many NCAA sports programs. The paper is nicely summarized by an article the authors wrote for the John William Pope Center for Higher Education Policy. Professors Lipford and Slice have discovered that which should be considered obvious: smaller schools who try to compete in conferences with the big boys generally require heavier subsidies. They compare two public universities in North Carolina with two private universities in the state, all four of whom are members of the Atlantic Coast Conference:

Flagship state universities, the University of North Carolina at Chapel Hill and North Carolina State University, spend heavily on athletics, but also have large numbers of students. Their per-student costs are about $4,500 and $3,000, respectively. In the analysis by the Chronicle of Higher Education, UNC receives subsidies of 11.1 percent of total athletic costs, while NCSU receives slightly less (9.7 percent).

For DI-A (FBS) private schools Duke and Wake Forest Universities, with about 6,500 and nearly 4,800 students, respectively, per-student costs are around $12,000.

Note that the authors are not claiming that students at each of these institutions subsidize their school’s athletic programs with the above sums, they simply point out that running a big athletics department is probably more feasible at a school with 25,000 students than it is at a school with 6,000 students. However, it should still be pointed out that both North Carolina public universities, each of whom has been traditionally successful in football and basketball, still rely upon subsidies to maintain their programs.

One common refrain from defenders of the current system is that football and basketball would break even, but it is the non-revenue sports like baseball, softball, track, swimming, gymnastics, and volleyball — many of which are required under Title IX regulations — which push athletics department into the red. While there is certainly some merit to the idea that operating certain sports at a loss cuts into the football and basketball profits, the Washington Post recently pointed out that the increases in television and ticket revenue for celebrated athletic programs is mostly being offset by higher levels of spending on those same revenue-generating sports. This shouldn’t come as a surprise to all of us who have bemoaned the fact that massive increases in tuition and taxpayer-backed loans have led to an explosion of administrative bloat in academic programs. It turns out that massive increases in revenue in athletics programs lead to expensive new facilities and extravagantly paid coaching staffs including million-dollar assistant football coaches and similarly well-paid basketball assistants.

Enjoy the games coming up, but know that you are paying for them not only by supporting the TV advertisers, purchasing the tickets, buying the logo gear, and donating to the athletics fund, but also by subsidizing the loans that the students are taking out to pay their tuition, some of which is being spent on the field, on the court, on the diamond, in the pool, on the track, on the mat, and in the gym.

12/30/2015

Alexandra Sifferlin at TIME Magazine says the temperature at the North Pole is over 50 degrees higher than average. Global Warming!!!!!1!!1!

North Pole Unfrozen as Temperature Soars

Stormy weather in the North Atlantic has brought balmy weather to the world’s northernmost point.

The temperature in the North Pole hit 42 degrees Fahrenheit on Wednesday morning, which Discovery News says is 50 degrees higher than average for this time of year. Storms over Iceland and Greenland, fairly common in winter, are pushing warmer air to the Arctic.

Bill Cosby was charged Wednesday with felony assault over an encounter with a woman 12 years ago.

“We are here to announce today charges that have just been filed against William Henry Cosby. These charges stem from a sexual assault that took place on an evening in early 2004 at Mr. Cosby’s home…” Montgomery County First Assistant District Attorney Kevin Steele said in a press conference. “Mr. Cosby is charged with aggravated indecent assault.”

Aggravated indecent assault is punishable by up to 10 years behind bars.

Cosby is expected to be arraigned on the charge this afternoon in Elkins Park, Pa.

12/29/2015

Because this campaign season seems so unlike any other, with its endless array of GOP candidates, an all out war within the Republican party, and Hillary Clinton coming back for a second round, I guess it really shouldn’t be surprising that Bill Clinton has now become the focal point of the silly season. And while we know that he loves nothing more than being the center of attention, I don’t think this particular kind of attention is what he had in mind.

Several days ago, Hillary Clinton’s campaign announced that beginning in January, Bill Clinton will hit the campaign trail to stump for his wife.

GOP front runner Donald Trump, already having experienced Hillary Clinton accuse him of having a “penchant for sexism” after his “schlonged” comment about her, responded to the announcement by throwing Hillary’s own words back at her and simultaneously hitting Bill Clinton with his past inappropriate sexual behavior toward women. Yes, he went there:

Hillary Clinton has announced that she is letting her husband out to campaign but HE’S DEMONSTRATED A PENCHANT FOR SEXISM, so inappropriate!

While Trump is a bombastic showman who stands for, well, Donald Trump, in light of Bill Clinton’s well known historical abuse of women, it’s easy to see which of these two men has a real penchant for sexism – and worse, far worse. Now the question being bandied about is whether an ex-president’s misconduct is fair game for attack as he takes to the stage to campaign for his wife. The same wife who enabled her ex-president husband’s gross sexual misconduct.

Over at the Washington Post, Ruth Marcus opines that yes, Bill Clinton’s history is fair game in the campaign. This in spite of her extreme distaste for Trump:

Well, Bill Clinton has a penchant for something. He had a successful presidency — with an ugly blot. “Sexism” isn’t the precise word for his predatory behavior toward women or his inexcusable relationship with a 22-year-old intern. Yet in the larger scheme of things, Bill Clinton’s conduct toward women is far worse than any of the offensive things that Trump has said.

Trump has smeared women because of their looks. Clinton has preyed on them, and in a workplace setting where he was by far the superior. That is uncomfortable for Clinton supporters but it is unavoidably true.

Which leads to the next question: What is the relevance of Bill Clinton’s conduct for Hillary Clinton’s campaign? Ordinarily, I would argue that the sins of the husband should not be visited on the wife. What Bill Clinton did counts against him, not her, and I would include in that her decision to stick with him. What happens inside a marriage is the couple’s business, and no one else’s, even when both halves crave the presidency.

But Hillary Clinton has made two moves that lead me, gulp, to agree with Trump on the “fair game” front. She is (smartly) using her husband as a campaign surrogate, and simultaneously (correctly) calling Trump sexist.

These moves open a dangerous door. It should surprise no one that Trump has barged right through it.

Why anyone would be surprised by anything Trump does is beyond me. If there is a door to break down, he will break it down. If there is a window to shatter, he will shatter it. If there is an unspoken taboo in political campaigning, in this case using Bill Clinton’s mistreatment of women as a weapon against Hillary Clinton, Trump will clumsily wield that weapon without a second thought.

And while GOP spouses and family members have already experienced attacks by the MSM in an effort to diminish their candidate’s credibility, not one of them has ever been accused of rape.

In light of that, if you were wondering how the media will handle Bill Clinton’s sexual misconduct being in the news again, as well as being used against his wife’s run for the presidency, wonder no more:

Donald Trump on Saturday night slammed Hillary Clinton by citing her husband’s history of marital infidelity and alleged sexual misconduct, escalating the increasingly personal feud between the GOP front-runner and the leading Democratic presidential candidate.

Battling crony capitalism and corporate welfare has been a central theme of this weekend’s gathering.* In that vein, Mike Allen of Politico asked Marco Rubio at Sunday’s lunch, commented on Rubio’s votes against a federal backstop for terrorism risk insurance and the Export-Import Bank, and then noted that Rubio made one exception to his opposition to crony capitalism. Rubio instantly knew what Allen was talking about: the federal sugar program.

Rubio has consistently voted for and defended the federal sugar program, which drives U.S. sugar prices higher by keeping out foreign sugar and provides federal loans to guarantee those high prices.

Rubio said, “I’m ready to get rid of the loan program for sugar, as long as the countries that export sugar into the U.S. get rid of theirs as well, and here’s why: Otherwise, Brazil will wipe out our agriculture and it’s not just sugar.”

This is nonsense. Other agricultural products do just fine without tariffs. And imposing tariffs on imports from other countries hurts us.

Before we get into why that is the case, let’s clarify what the “loan program” really is: price-fixing by the government. SugarCane.org describes the program this way:

The U.S. Department of Agriculture (USDA) provides loans to sugarcane and sugar beet producers and processors that guarantee a minimum price regardless of the true market conditions. At the end of the loan term (generally 9 months), sugar producers and processors make one of two choices:

1. Turn over to the government the sugar they produced as payment for the loan, or

2. Sell their sugar on the market if the going price is higher than the USDA loan amount

In other words, the government sets a floor for sugar prices. In addition, the government institutes two other forms of corporate welfare for U.S. sugar companies, including domestic market controls and tariff-rate quotas. All of these distort a free market in sugar, with deleterious effects.

I want to concentrate on Rubio’s argument that we have to allow government to interfere with the operation of the free market in sugar, because other countries do the same thing. The argument appears to be: if they slap tariffs on us, we have to slap tariffs on them!

The problem with this argument is the lazy, populist assumption that when we slap tariffs on them, we are hurting them and not ourselves. This, I will explain, is not the case. When we slap a tariff on imports, there is a trade-off. (Remember Thomas Sowell’s dictum: there are no solutions, only trade-offs.) And in that trade-off, we hurt ourselves badly when we slap tariffs on imports of any sort.

The following analysis is based on two rock-solid assumptions:

First: In a free market, people tend to buy the products that they believe are the best value. In other words, they gravitate towards the best products offered for the least amount of money. This means different things to different people, but the collective decisions of a free people result in some products being winners and some being losers.

Second: In a free market, people tend to benefit on both sides of a transaction. The seller believes he is better off with the money he receives, and the buyer believes he is better off with the goods or services he buys.

Any government interference distorts both of these principles.

Let’s first consider what happens when we slap tariffs on other countries’ imports. That will provide us a framework for considering what happens when other countries slap tariffs on our goods.

When we slap tariffs on other countries’ goods, it feels like we’re hurting the other country. But to a large degree, we are hurting ourselves.

Think about what happens when, in the absence of any tariffs, an American chooses to buy a product manufactured in a foreign country rather than one manufactured here at home.

If the good is a consumer good, the consumer benefits because he gets a better product at a lower price. (If he thought he could get the best deal by buying the domestic product, he would.) The consumer gets to keep more of his money and gets a better product — all of which increases his standard of living.

If the good is a capital good, certain American companies benefit if they use that capital good to make consumer goods. What is more, customers of those American companies benefit because they can buy those goods more cheaply.

Some goods are both consumer goods and capital goods — like sugar. Consumers buy sugar as a consumer good. American candy companies and soft drink manufacturers (among others) purchase sugar as a capital good (or used to), which they use to make their products. In these cases, without tariffs, American consumers benefit, certain American companies benefit, and customers of those American companies benefit.

American companies that export goods benefit from a lack of tariffs, for at least two reasons. First, other countries tend to retaliate against our tariffs with tariffs of their own — not a wise policy, but one that occurs. When we remove tariffs, other countries’ retaliatory tariffs are often removed, making our exports more attractive. Second, when we buy foreign goods, that gives citizens of other countries American dollars, which they can then use to buy our exports.

Finally, in all these transactions, the foreign company benefits, because it gets the sale and the profits that go along with it.

American companies making inferior or more expensive products like to argue that they are also “harmed” by a pure free market that lacks of tariffs — because the American company is not making the sale, foreign companies are. And it is true: when tariffs are instituted, it may benefit American companies that make products that do not succeed on a free market, because they are inferior, too expensive, or both.

But a tariff does not just help American companies making inferior and more expensive goods, and hurt foreign companies making better and cheaper products. These tariffs also hurt the people listed above who benefit from a lack of tariffs.

American consumers are hurt because of the lack of choices and because they are incentivized to pay more for inferior products, lowering their standard of living.

If the goods slapped with a tariff are capital goods, certain American companies are hurt because they must pay more for those goods. In turn, the customers of certain American companies are hurt because they must pay more for the products, or receive inferior products.

When the goods slapped with a tariff are both consumer and capital goods — like sugar — all three groups are hurt by tariffs. Consumers are harmed. Certain American companies are harmed. And the consumers of those American companies are harmed.

The Planet Money episode opens with a CEO of a candy company talking about how he could expand his operations here in the U.S., rather than send massive parts of his operations to Mexico. What does he need? he asks rhetorically. Lower tax rates? Workers’ comp reform? A right to work law? Nope. He says he could pay no taxes, and get all those other things, and would still manufacture candy canes in Mexico. What does he ask for?

“Let us buy sugar on the free market.”

Finally, as noted, American companies that export goods are harmed by tariffs on imports.

Now let’s turn to the case Rubio is talking about: the distortion that occurs when a foreign government distorts the market by, say, slapping a tariff on imported goods from the United States.

Again, a simplistic analysis says: when a foreign country slaps tariffs on our goods, they are hurting us. But in reality, they are largely hurting themselves. This flows from taking the analysis above and applying it to the country imposing a tariff.

If Brazil imposes a tariff on U.S. sugar, that can have the effect of helping Brazilian sugar companies, to the extent that they are producing inferior or more expensive products that would not be purchased absent the tariff. It can also have the effect of harming U.S. sugar companies, to the extent that U.S. sugar companies would be able to compete in Brazil absent the tariff.

But, as we have seen, a Brazilian tariff on sugar also imposes harms on Brazil. Brazilian consumers are hurt, as their sugar prices rise, lowering their standard of living. Certain Brazilian companies are hurt — namely, ones that use sugar as a capital good. And the customers of those Brazilian companies are harmed. Also, Brazilian companies that export goods generally are hurt.

It’s not as if Brazil can slap tariffs on us without consequence.

What about the argument that retaliatory tariffs act as a “crowbar” to loosen tariffs in other countries, promoting free trade for all? Jim Powell has examined this argument and found that it lacks any evidence to support it, saying: “it is hard to find a single significant case in which trade retaliation or retaliatory threats have forced open a foreign market.” Trade retaliation tends to close markets, not open them.

As one of several problems with trade retaliation, Powell explains what I have explained above: that tariffs and sanctions harm the country that imposes them as well as the country targeted:

[T]he “tougher” the sanctions, the more they harm people in the retaliating country. Import restrictions trigger shortages and higher prices for consumers, and export restrictions wipe out business for exporters. Sanctions probably inflict as much harm at home as they do on the target country. That is why tough sanctions are seldom adopted, despite continuing objectionable practices in a target country. When such measures are adopted, they lead to losses, black markets, and corruption.

Powell also notes that a retaliatory tariff “tends to inspire nationalism and xenophobia in the target country”; “forces a country to reorient its economy toward alternative suppliers and markets”; “expands the role of government in the target country, much as warfare does”; and “cannot do anything about the worst cases, nations whose economies are already closed.”

In what can only be described as reporting straight from The Onion, included in the State Department’s list of accomplishments is the claim of “Bringing Peace, Security to Syria.” Seriously.

John Kirby, spokesman for the State Department and the post’s author, touts the United States’ “humanitarian aid contributions” to the war-torn country and praises Secretary of State John Kerry for his role in the UN Security Council resolution that laid plans for upcoming peace talks. “From the humanitarian crisis endured by refugees fleeing violence, to the reprehensible human-rights violations and violence carried out by the Asad [sic] regime, the Syrian people have borne a heavy load,” Kirby writes.

Interesting, especially in light of the ongoing raging civil war in Syria, the travel warning issued by the State Dept. for anyone thinking of vacationing in Syria, the strong presence of ISIS in Syria, and the more than 4 million Syrian refugees who have fled the country, with the greatest number of refugees seeking asylum having occurred this year.

Anyway, along with peace and security in Syria, you can also read about how the same State Dept. ensured the world a peaceful Iranian nuclear program.

What a fabulous year it’s been, John Kerry. Kudos.

–Dana

UPDATE BY PATTERICO: From the travel warning:

The Department of State continues to warn U.S. citizens against all travel to Syria and strongly recommends that U.S. citizens remaining in Syria depart immediately. This Travel Warning supersedes the Travel Warning dated March 3, 2015, to remind U.S. citizens that the security situation remains dangerous and unpredictable as a violent conflict between government and armed anti-government groups continues throughout the country, along with an increased risk of kidnappings, bombings, murder, and terrorism.

12/26/2015

Regular readers are already familiar with Ron Coleman of Archer & Greiner and the Likelihood of Confusion blog. (If you’re not, you should be — and I will fill you in at the end of the post.) Ron just won a historic victory in a trademark case involving First Amendment issues. The bottom line is this: thanks to Ron Coleman, the government can no longer squash your speech by using trademark law to find your trademark “disparaging.”

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech.

This is the part where we all rise to our feet and join a rousing standing ovation.

I was unaware of this particular case (and Ron’s role in it) until yesterday, but regular readers will remember that the issue of disparaging trademarks and the First Amendment was discussed on this blog last year, in connection with the Redskins trademark. In June, I noted that the Patent and Trademark Office had invalidated the team’s then 82-year-old mark, suddenly deciding out of nowhere (in the middle of a P.C.-driven controversy on which Obama had weighed in; odd how that happens!) that the mark was “disparaging to Native Americans.” Our reader SPQR pointed out the obvious First Amendment issues in that post, and I stated: “I agree with him [SPQR] that this decision violates the First Amendment. This is unconstitutional viewpoint discrimination in a limited public forum.” (Always trust content from Patterico!)

That evening, I elaborated on the First Amendment issue, with some help from Eugene Volokh. I ended my post by saying: “I’m not surprised to hear that the Redskins are appealing the ruling — and I hope they win . . . and squash this precedent hard.”

Well, the Redskins appeal is still pending before the Fourth Circuit. But they got a real boost from the decision in the case handled by Ron, which I will turn to now. The decision is here, and it makes my heart swell with pride to see the name at the very top of the decision, and to be associated with this man:

Ron’s client — can it really be possible that he represented this client pro bono as well? Apparently so! — is Mr. Simon Shiao Tam, who founded a band called “The Slants.” At Ars Technica, they explain: “Tam, the front man for the dance-rock band, has said he chose the mark to ‘own’ the stereotype and has said that reaction from the Asian community has been ‘very positive.'” As the court states:

Mr. Simon Shiao Tam named his band THE SLANTS to make a statement about racial and cultural issues in this country. With his band name, Mr. Tam conveys more about our society than many volumes of undisputedly protected speech. Another rejected mark, STOP THE ISLAMISATION OF AMERICA, proclaims that Islamisation is undesirable and should be stopped. Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities. But the First Amendment protects even hurtful speech.

“Stop the Islamisation of America” is Pam Geller’s (attempted) trademark — and in the opinion, it is included in a long list of trademarks rejected as “disparaging” ranging from the ridiculous to the politically passionate. In addition to the Slants and Geller’s trademark, the list includes the Redskins; “Democrats Shouldn’t Breed”; “Republicans Shouldn’t Breed”; a symbol of the Soviet Union with an X over it (can’t disparage the commies, you know!); and many others. Meanwhile, “Think Islam” and “Dykes on Bikes” were approved after it was shown that the relevant groups approved of the message. Whether a mark was “disparaging” or contained praise ended up being critical to its treatment by the government.

So we had a situation where out government approved a “Think Islam” trademark but rejected a “Stop the Islamisation of America” trademark. Are you beginning to see the First Amendment implications yet?

The opinion notes that the Trademark Trial and Appeal Board had determined that Tam was referring to Asians with the term “The Slants” in part because of his public statements that he wished to “own” the stereotype — and in part “because there was record evidence of individuals and groups in the Asian community objecting to Mr. Tam’s use of the word.” You read that correctly: interest groups whined about his use of a term they considered hurtful to their feels — and government stepped in to help squash the offender’s livelihood. Are you beginning to see the First Amendment implications yet?

The panel decision had opined, in line with previous precedent, that the First Amendment was not implicated because The Slants could use the name (just as the Redskins can use theirs) — they just would not receive statutory protection. The previous precedent had been widely criticized — yet it had been widely applied in other circuits because of the cachet that the Federal Circuit has in intellectual property matters. The Federal Circuit therefore decided to take the case en banc. Not only did the en banc court find this particular decision violated the First Amendment but — and this is the epic part — they struck down the disparagement provision as unconstitutional.

In so doing, they noted that the Obama administration (antiseptically called “the government” in the opinion, as you do) had defended the unconstitutional provision because it didn’t like the speech:

Underscoring its hostility to these messages, the government repeatedly asserts in its briefing before this court that it ought to be able to prevent the registration of “the most vile racial epithets and images,” Appellee’s En Banc Br. 1, and “to dissociate itself from speech it finds odious,” id. 41.

Are you beginning to see the First Amendment implications yet?

When “the government” is in court arguing “we should be able to disfavor this speech because we don’t like it” . . . well, you’d think a light bulb might go off inside someone’s head.

To me, this is the trademark version of the Nazis marching at Skokie — only Ron’s client is a good guy, not a bad guy.

So, the government will not be picking and choosing between trademarks based on their content any more — thanks to Ron Coleman.

What’s more, this is going to be a game-changer for the Redskins in the Fourth Circuit. I will remind you that this decision was issued by the Federal Circuit, sitting en banc — and the Federal Circuit which is the big enchilada when it comes to intellectual property issues. There is no way that the Fourth Circuit doesn’t examine this opinion closely.

I’d like to close the post by saying a little something about Ron Coleman. In addition to becoming a partner this year at Archer & Greiner and running the Likelihood of Confusion blog, Ron, along with the redoubtable Bruce Godfrey of Jezic & Moyse LLC, is defending me in the absurd and censorious lawsuit brought by convicted bomber and perjurer Brett Kimberlin. (It’s the Energizer Bunny case: still going since 2013!)

For many lawyers, the Slants case would be the highlight of a career. But Ron has many other highlights — and more still to come. (Including, we hope, another important First Amendment victory in 2016.)

Ron Coleman is a good man who fights for important principles. Go congratulate him on his fine work here. He can be found on Twitter @roncoleman and (more esoterically) @likely2confuse.

12/25/2015

narciso on Let’s Not Forget About McCabe’s Conflict Of Interest Based On His Wife

AZ Bob on Trump Twitter Accusation Against Comey Creates Non-Existent Quote Out of Thin Air

DRJ on Let’s Not Forget About McCabe’s Conflict Of Interest Based On His Wife

Colonel Haiku on Trump Twitter Accusation Against Comey Creates Non-Existent Quote Out of Thin Air

happyfeet on Trump Twitter Accusation Against Comey Creates Non-Existent Quote Out of Thin Air

narciso on Trump Twitter Accusation Against Comey Creates Non-Existent Quote Out of Thin Air

BuDuh on Trump Twitter Accusation Against Comey Creates Non-Existent Quote Out of Thin Air

happyfeet on Trump Twitter Accusation Against Comey Creates Non-Existent Quote Out of Thin Air

Colonel Haiku on Trump Twitter Accusation Against Comey Creates Non-Existent Quote Out of Thin Air

Rev.Hoagie on Let’s Not Forget About McCabe’s Conflict Of Interest Based On His Wife

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